March 2, 2012

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50394(U))

https://www.beynensonlaw.com/case-law/right-aid-diagnostic-medicine-p-c-v-geico-ins-co-2012-ny-slip-op50394u/

Court: Appellate Term, Second Department
Decided: March 2, 2012
Citation: 2012 NY Slip Op 50394(U) · 34 Misc 3d 155(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 34 Misc 3d 155(A), 2012 NY Slip Op 50394(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity. The insurer's affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. The provider's objection to an electronically stamped facsimile signature failed because the record showed that the reviewing doctor placed it on the report or directed its placement. The provider did not challenge Civil Court's finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50394(U))

[*1]

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co.

2012 NY Slip Op 50394(U) [34 Misc 3d 155(A)]

Decided on March 2, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 2, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1720 K C.

Right Aid Diagnostic Medicine, P.C. as Assignee of AMABLE ROBLES, Respondent, —
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered January 20, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely and properly denied plaintiff’s claim, and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s determination [*2]that there was a lack of medical necessity for the services rendered. In opposition to the cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2010 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). While plaintiff also asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was placed on the report by the doctor who had performed the peer review or at his direction (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 02, 2012

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Granted the insurer summary judgment because its affirmed peer review was sufficient, the facsimile signature was placed by or at the direction of the reviewer, and the provider's affirmation did not meaningfully address it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U))The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Queens Med. Supply, Inc. v Geico Gen. Ins. Co. (2011 NY Slip Op 52284(U))The peer review report was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

High Quality Med., P.C. v GEICO Ins. Co. (2011 NY Slip Op 52373(U))The insurer's peer review and IME reports established lack of medical necessity, and the provider's medical affidavit failed to rebut them.
Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.
New Life Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51061(U))The provider's practitioner failed to meaningfully rebut two peer review reports establishing lack of medical necessity.
Ave P Rehab & Med. Plaza, P.C. v Geico Ins. Co. (2011 NY Slip Op 52301(U))The insurer's three affirmed peer review reports established lack of medical necessity, and the provider did not rebut that showing.
Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.